Town and country planning – Residential development – Local plan – Respondent council refusing planning permission for residential development as being contrary to saved local plan policies – Inspector allowing appeal after in finding that saved local plan policies out of date and to be given reduced weight – Inspector’s decision quashed on ground of failure to consider extent to which policies consistent with National Planning Policy Framework as required by para 215 of NPPF – Appeal dismissed
The respondent local planning authority refused an application by the appellant developer for planning permission for a proposed development of 121 dwellings on an open field site adjacent to the village of Weedon Bec, Northamptonshire. The respondent considered that the development would be contrary to two saved local plan policies that restricted residential development outside the confines of the existing village perimeters and in the open countryside. Those policies had originally formed part of a local plan adopted in 1997, in accordance with a 1989 structure plan, and informed by an evidence base compiled in the 1990s. They and other local plan policies had been saved in 2007 on the direction of the secretary of state.
A planning inspector allowed the appellant’s appeal against the refusal of planning permission. In doing so, he found that the saved local plan policies were out of date and should therefore be given reduced weight. He did not reach that finding based on any failure of the respondents to demonstrate a five-year supply of housing land, which would have required the policies to be deemed out of date pursuant to para 49 of the National Planning Policy Framework (NPPF). Instead, he found that the two local plan policies were outdated because of their age and what he considered to be their lack of consistency with the thrust of para 47 of the NPPF towards boosting the supply of housing.
The respondents’ application to quash the inspector’s decision, under section 288 of the Town and Country Planning Act 1990, was allowed in the court below. The judge held that the inspector had been required by para 215 of the NPPF to analyse in what way, and to what extent, the saved local plan policies were or were not consistent with the policies set out in the NPPF, but had failed to do so. The judge considered that the two local plan policies were not necessarily inconsistent with the NPPF just because they were adopted years earlier, against the background of a now superseded structure plan; he found that there were important points of consistency between those policies and the NPPF. He also held that the inspector had confused the functions of plan-making and decision-taking, with para 47 of the NPPF setting out policy for the former rather than the latter: see [2015] EWHC 3459 (Admin); [2015] PLSCS 345. The appellant appealed.
Held: The appeal was dismissed.
(1) The inspector had failed to grapple with the issue posed by para 215 of the NPPF, under which weight was to be given to relevant policies in existing plans according to their degree of consistency with the NPPF. That was not just a matter of a failure to give reasons. The inspector had not sought to assess the issue of the weight to be accorded to the two saved local plan policies under the approach mandated by para 215 at all. That appeared from his excessively narrow focus on paras 47 and 49 of the NPPF, to the exclusion of other relevant policies in the NPPF which should have been brought into account in any proper analysis of the consistency of the two local plan policies with the policies in the NPPF. The inspector had made no reference at all to para 215. In those circumstances, the judge had properly quashed the inspector’s decision.
(2) Since old policies such as the two saved local plan policies were part of the development plan, the starting point, for the purposes of decision-making, remained section 38(6) of the Planning and Compulsory Purchase Act 2004, which required hat decisions be made in accordance with the development plan, and therefore in accordance with those policies and any others contained in the plan, unless material considerations indicated otherwise. The mere age of a policy did not cause it to cease to be part of the development plan. The weight to be given to particular policies in a development plan, and hence the ease with which it might be possible to find that they were outweighed by other material considerations, might vary as circumstances changed over time, in particular if there was a significant change in other relevant planning policies or guidance dealing with the same topic. Material considerations indicating that planning permission should be granted despite conflict with a plan policy might include the fact that the particular policy could be seen to be outdated and superseded by more recent guidance: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 applied.
(3) The NPPF and the policies it set out might, depending on the subject matter and context, constitute significant material considerations. The fact that a particular development plan policy was chronologically old was, in itself, irrelevant for the purposes of assessing its consistency with policies in the NPPF. Since an important set of policies in the NPPF was to encourage plan-led decision-making, in the interests of coherent and properly targeted sustainable development in a local planning authority’s area, significant weight should be given to the general public interest in having plan-led planning decisions even if particular policies in a development plan might be old. There might still be a considerable benefit in directing decision-making according to a coherent set of plan policies, even though they were old, rather than having no coherent plan-led approach at all. In the present case, it was significant that the secretary of state himself decided to save the local plan policies in 2007 because he thought that continuity and coherence of approach remained important considerations pending development of appropriate up-to-date policies.
(4) Paragraph 49 of the NPPF created a special category of deemed out-of-date policies, namely relevant policies for the supply of housing where a local planning authority could not demonstrate a five-year supply of deliverable housing sites. The mere fact that housing policies were not deemed to be out of date under para 49 did not mean that they could not be out of date according to the general approach set out above.
(5) It was a regular feature of development plans to seek to encourage residential development in appropriate centres and to preserve the openness of the countryside. The two local plan policies had been adopted to promote those objectives, which remained relevant and appropriate when the policies were saved in 2007, and, in general terms, one would expect them to remain relevant and appropriate today. That was something which needed to be considered by the planning inspector when the case was remitted, along with the question of the consistency of those policies with the range of policies in the NPPF under the exercise required by para 215 of the NPPF.
(7) Paragraph 47 of the NPPF dealt with a mixture of topics. While many of its bullet points related solely to plan-making and not to decision-taking, the better view was that the second bullet point was not so confined. The fact that it imposed an obligation to “update annually” the five-year housing supply meant that it was looking in part at an activity of a local planning authority outside its plan-making function; it created a continuing obligation on a local planning authority to check that their housing supply was in fact in accordance with the standard there set out, and, if it was not, then the second bullet point would have force in relation to decision-making. However, if the standard set out in the second bullet point of para 47 was complied with by a local planning authority, as it was in the present case, then para 47 had no implications for decision-taking by a planning authority. Thus, in the circumstances of the instant case, para 47 did not qualify as “more recent guidance” such as might justify a planning inspector in treating the two local plan policies as being out of date, or inconsistent with para 47 of the NPPF, for the purposes of the assessment required under para 215: Oadby and Wigston Borough Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 1040; [2016] PLSCS 289 applied.
Richard Kimblin QC (instructed by Irwin Mitchell LLP, of Manchester) appeared for the appellant; Thomas Hill QC and Christiaan Zwart (instructed by District Law, of Kettering) appeared for the respondent.
Sally Dobson, barrister
